The Swier Law Firm Estate Planning and Probate Law FAQs

The Swier Law Firm Estate Planning and Probate Law FAQs

 

Have questions? We have answers! Our South Dakota attorneys answer the questions they hear most often from clients just like you.

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  • What Does Will Contest Mean In Estate Planning?

    What Does Will Contest Mean In Estate Planning?

    This does not determine who has the best Will, it is a process through which someone files a formal objection to a Will.  The objection could be for any number of reasons, but the objection must be filed with and heard by the probate court of the county where probate of the Will is taking place.

    Example Of Contest In Regards To Estate Planning

    My uncle filed an objection to my grandma’s will.  He says she wasn’t competent when she wrote him out and didn’t know what she was doing.  Dad is mad that her estate needs to be slowed down and pay money to fight a will contest.

  • What Do Wills Mean In Estate Planning?

    What Do Wills Mean In Estate Planning?

    A written document that contains instructions for the disposal of assets at a person’s death.  This is filed and enforced through a probate process, sometimes involving the probate court.  Laws vary by state.
     

    Holographic Will

    A will that is partially or fully handwritten.  Not all states recognize holographic wills.
     

    Pour-over Will

    Used together with a revocable trust to “pour” any assets that were not in a decedent’s trust at the time of death over to the trust.

    Example Of Wills In Regards To Estate Planning

    My dad signed a will that excluded my brother, left me only part of his estate and left a ton to charity.  I’m sad I didn’t get more, but I’m glad he was able to exclude people he had problems with and give to a charity he loved.

  • What Does Unified Credit, Estate Tax Exemption, Combined Estate and Gift Tax Exemption Mean In Estate Planning?

    What Does Unified Credit, Estate Tax Exemption, Combined Estate and Gift Tax Exemption Mean In Estate Planning?

    The amount each person is allowed to deduct from any federal estate tax that may be due after death or for gifts given during lifetime (above the annual gift tax exclusion amount).  In 2019 this amount is $11.4 Million.  Current rough calculations of American assets show that more than 99% will never pay an estate tax at these levels, especially with estate tax portability.
     

    What Is Estate Tax Portability?

    Estate Tax Portability can be used by a married couple to shield $22.8 Million dollars from federal estate and gift tax.

    Example Of Unified Credit, Estate Tax Exemption, Combined Estate and Gift Tax Exemption In Regards To Estate Planning

    My dad used 2 Million of his estate tax exemption amount during his life and at his death.  My mom elected portability of the remaining 9.58 Million dollars so she can now shelter 21.16 Million dollars from gift tax during her lifetime or estate tax at her death. (11.58 + 9.58 = 21.16)

  • What Does Trustee Mean In Estate Planning?

    What Does Trustee Mean In Estate Planning?

    Person or institution that will manage assets, distribute assets and take care of administrative matters of the trust according to the terms of the document.

    Example Of Trustee In Regards To Estate Planning

    My brother was serving as the trustee of my dad’s trust after he died, but he recently named our local bank to serve in that position because the job was too much for him.

  • What Does Assigns Mean In Estate Planning?

    What Does Assigns Mean In Estate Planning?

    An institution specializing in the management of trusts.  Sometimes these are trusts of a specific family and other trust companies will manage any trusts.  There are lots of trust companies in South Dakota because of the favorable trust laws of the state.  They serve as a corporate trustee and can have roles ranging from specific to general.

    Example Of Assigns In Regards To Estate Planning

    I have named by children and my favorite niece as the assigns of my estate.  If they survive me they will split my estate equally.

  • What Does Successor Mean In Estate Planning?

    What Does Successor Mean In Estate Planning?

    Someone who follows. These people are named to serve in a position; executor/personal administrator, power of attorney, trustee etc. as a back-up if the first person named is unable or unwilling to serve. 

    Example Of Successor In Regards To Estate Planning

    My mom named by dad as the Personal Representative of her estate but he dies years ago so I am serving as the named successor.

  • What Does Spendthrift Clause Mean In Estate Planning?

    What Does Spendthrift Clause Mean In Estate Planning?

    A clause added to a trust to protect assets in that trust from a beneficiary’s creditors.  This can include protection from a spouse in divorce.

    Example Of Spendthrift Clause In Regards To Estate Planning

    My dad put a spendthrift clause in his trust so even though I was supposed to get distributions already the trustee won’t give me any money because I’m in the middle of a nasty divorce and they don’t want it taken from me.

  • What Does Required Minimum Distribution Mean In Estate Planning?

    What Does Required Minimum Distribution Mean In Estate Planning?

    The amount you are required to withdraw each year from a tax deferred retirement plan after you have reached the required beginning date (RBD).  This amount is determined across all of these accounts and is calculated by dividing the year-end value of all of these accounts by a life expectancy divisor provided by the IRS.  Although calculated across all of these accounts, you can take your total RMD from one account.

    Example Of Required Minimum Distribution In Regards To Estate Planning

    My grandma forgot to take her required minimum distribution last year and had to pay a penalty.

  • What Does Provision Mean In Estate Planning?

    What Does Provision Mean In Estate Planning?

    This just refers to a clause or section of a legal document.

    Example Of Provision In Regards To Estate Planning

    Provision 5.3 of my mom’s will says that I am named the Personal Representative of her estate.
     

  • What Does Trust Mean In Estate Planning?

    What Does Trust Mean In Estate Planning?

    An entity that holds assets for beneficiaries.  Beneficiaries can be the grantor, grantor’s spouse/children, charities, pets, or other named individuals.  Beneficiaries can be named without being currently living. 

    Common Types Of Trusts

    Revocable Trust 

    A trust formed during someone’s lifetime which they have the right to “revoke” or end/cancel, change or amend during their lifetime.  This is commonly referenced as a way to avoid probate (trusts don’t die), but because the person has kept rights to the property it will not help avoid taxes.  These trusts need to be funded during life to gain their full benefit.

    GRAT: (Grantor Retained Annuity Trust)

    A trust used to transfer very large gifts without gift tax.  This is set up for a period or specific term with the Grantor receiving an annuity over that time.  At the end, what remains in the trust passes to the beneficiaries tax free.

    Living Trust: (See Revocable Trust above)

    Inter Vivos Trust: (See Revocable Trust above)

    This is a Latin term meaning “between the living” but is the same as a revocable trust described above.

    Pet Trust  

    A trust set up specifically to help care for pet/s after death.  Generally able to be used by the person caring for the pet for pet-related costs, can pass to beneficiaries or charity upon death of pet.

    QTIP Trust  

    (Qualified Terminable Interest Property Trust): This trust will delay estate tax until a surviving spouse dies so that more income will be available to that surviving spouse during his or her lifetime.

    QDOT Trust: (Qualified Domestic Trust)

    This trust will allow a non-citizen spouse to qualify for a marital deduction at the death of his or her spouse.

    QSST: (Qualified Subchapter S Trust)

    A trust that meets the IRS standards to be allowed to own subchapter S stock.

    Conduit Trust/Pass Through Trust 

    A trust set up to be the beneficiary of an IRA which states that any distributions made to the trust must be paid out of the trust that same year, no accumulation is allowed.

    Community Property Trust  

    A trust that will cause the assets within to be treated as community property even when not in a community property state.  This is best for couples that have low-basis assets since it allows a double step-up in basis of assets at death resulting in reduction or elimination of capital gains tax upon sale.  South Dakota is one of only a few non-community property states to allows community property trusts.

    Special Needs Trust/Supplemental Needs Trust 

    A trust intended to supplement the life of a disabled individual without interfering with state or federal benefits they are or may become entitled to.  This can be set up by someone else, or by the disabled person themselves.  Different rules will apply depending on who sets up this trust.

    Testamentary Trust  

    A trust that is not formed during a person’s life, but is instead formed at the person’s death, generally through provisions in their will.  This does not avoid probate.